Legislation providing that the British monarch could, by Order in Council, grant copyright protection, within Britain and its Dominions, to the authors of literary works first published abroad for a period specified within the Order but not exceeding the domestic copyright term. The Act provided the first occasion on which the British legislature offered the possibility of copyright protection for the work of foreign authors. Its timing is indicative of the widespread attention which the issue of international copyright had begun to attract in Britain, on the continent, and in the United States. The commentary describes the background to the legislation in relation to British attitudes to the importation of foreign works throughout the sixteenth, seventeenth and eighteenth centuries, and in the context of early nineteenth century debates before the courts as to whether the work of foreign authors was in any event protected under existing legislative measures (see also: uk_1854). The commentary also explores the reasons for the failure of the British government to successfully negotiate any bilateral agreements under the legislation, but nevertheless suggests that the 1838 Act provided an important platform upon which to build a subsequent and more successful regime of international copyright protection (see also: uk_1844; uk_1852; uk_1886).

3. Samuel Buckley's petition to Parliament

When the Statute of Anne 1710 was passed, it provided that nothing therein was to be construed as prohibiting the "importing, vending or selling of any books in Greek or Latin, or any other foreign language printed beyond the seas".[1] For those writing and publishing in Britain in a language other than English, this meant that, while the 1710 Act prohibited the printing and publication of their work, it nevertheless allowed booksellers to import continental reprints of that same work without redress. One consequence of this provision was that authors and publishers would, rather than relying upon the Statute of Anne, instead seek a royal privilege to protect their work and prevent others from importing copies of the same into Britain.[2] Samuel Buckley, however, rather than relying upon the grant of a privilege, chose to petition the Commons instead. On 18 February 1734, Buckley submitted a petition before the House requesting protection for his edition of Thuanus' Histories (in Latin), seeking "such Privilege ... as is already granted to every British subject who is possessed of the Copy of any Book in English".[3] In doing so he drew parallels between the protection granted to works in a foreign language in France and Holland, and the protection, or rather the lack thereof, provided for such works in England. In Holland, for example, he observed that privileges were regularly granted to local printers "to reprint the most useful books published in the neighbouring nations, in the learned languages, or in French the common language almost of Europe", and continued:

"No wonder therefore the States [Holland] give such ample privileges to encourage printing, which has so long appear'd to them to be a staple manufacture, that, by increasing the commerce of their subjects, and bringing wealth into their country, is of certain and solid advantage to the state."[4]

He concluded with an appeal that the legislature might "treat a native subject with the same indulgence as all the neighbouring governments do theirs" by granting him a protection for his work. His plea did not fall upon deaf ears. Observing that he, "at a very great expence, by his own industry, and with the assistance of divers learned persons in the course of several years", had made "great additions and improvements" to the Histories, and noting that "the proviso [in the 1710 Act] was not intended for the advantage of foreigners in prejudice to the natives of this Kingdom", the legislature provided him with the sole right of printing his work for fourteen years. This, the legislation explained, was to ensure "that he may not lose the fruit of his expence and labour by the avarice of foreign printers, or suffer by an Act made for the Encouragement of Learning".[5]

With his petition, Buckley had brought to parliament's attention the differential treatment that authors received in Britain as compared with their European counterparts, and the impact this had upon the domestic trade and the national economy, concerns that were soon co-opted by the book trade writ large. On 3 March the following year, when the London booksellers petitioned the Commons for an Act to render more effectual the Statute of Anne, they complained, not just of unlawful printing within Britain, but of the publication of protected works "in foreign parts by persons who have paid no consideration for the Copy-Right in such books, and who have imported such surreptitious editions and impressions thereof into and sold and disposed thereof in this Kingdom".[6] They continued that this problem of cheap foreign imprints, exacerbated by the low cost of paper on the continent, tended "to the diminution of His Majesty's revenue, the discouragement of the art of printing and the trade and manufacture of this kingdom".[7] In return for renewed legislative protection, the booksellers promised a more buoyant marketplace, increased manufacture, and additional revenues for the public purse, and, while they may not have been successful in securing an Act to revise and replace the Statute of Anne,[8] their efforts did, eventually lead to the passing of An Act for prohibiting the Importation of Books re-printed Abroad, and first composed or written, and printed in Great Britain 1739 (the Importation Act).[9] As well as extending the protection of Buckley's Act to all foreign language works first published in Britain,[10] this legislation also closed an apparent loophole in the poorly drafted 1710 statute, which, while it prohibited the printing, reprinting and importing of works protected in accordance with the legislation, continued that only those "knowing the same to be so printed or reprinted [but not imported] without the consent of the proprietors" were to be liable for selling the same.[11]

4. Britain and the Continental Book Trade

The British attitude to foreign imports had waxed and waned throughout the centuries. Shortly after William Caxton (1415x24-1492) first established his printing press in Westminster in 1476, the government passed a statute to regulate and restrict the manner in which Italian merchants, and other "merchants strangers", were able to carry on their trade within the City of London,[12] an act which nevertheless specifically allowed any foreigners to import books into England,[13] as well as providing that any foreign "scrivener, alluminor, reader [binder] or printer of ... books" might carry on his business within the realm.[14] Henry VIII (1491-1547) reversed this policy and initiated a regime of overt domestic trade protectionism with legislation that revoked the privileged status of foreign printers, and made it an offence to import bound books, or to buy retail any manner of printed books brought from "beyond the sea" from an alien.[15] His interest, however, lay not just in the encouragement of domestic trade; he was also concerned with the ideological control of the press. As Feather notes: "The explicit prohibition on book imports by foreigners was undoubtedly intended to prevent the import of books, whether in English or Latin, which were politically or religiously unacceptable to the crown".[16] These twin impulses, to both encourage and regulate the domestic industry as well as control and censure the flow of politically sensitive texts into the country, marked the government's relationship with the book trade throughout the remainder of the Tudor and the Stuart regimes.[17] By contrast, with the Statute of Anne the colour of the legislation proved neither censorial nor protectionist, but rather sought to encourage the dissemination of and access to scholarly texts in allowing for the free importation of all works in a foreign language from the continent.[18] And then, as we have seen, the educational imperative underscoring the importation clause in the 1710 Act,[19] subsequently gave way to the economic self-interest of indigenous authors and publishers and, by extension, to a nation increasingly concerned with domestic and international commerce and trade.[20]

And yet the issue of competition with the foreign book trade remained problematic for a number of reasons. In the first place the practice of smuggling cheap continental reprints into Britain remained a constant thorn in the side of the metropolitan booksellers. Second, while the legislation sought to prevent the commercial importation of works, it did not preclude British tourists from buying cheaper editions of books on their travels to furnish their libraries at home. Indeed, at one point, the writer G.P.R. James (1801-1860) estimated that over the course of one year close to 1500 continental reprints of copyright protected works passed through one part alone in the hands of British travellers returning from abroad.[21] Finally, policing national borders to prevent the importation of protected works into Britain did nothing to prevent continental publishers reprinting these works for an increasingly significant overseas market.[22] It was not until the nineteenth century, however, that the possibility of securing copyright protection for British authors in foreign jurisdictions (and vice versa) came to be seen as a plausible mechanism for addressing these various issues,[23] as the question of international copyright protection came to the fore both in Europe and the United States.[24]

5. Copyright and Foreign Authors in the 1830s

While it was evident that the work of British authors received no protection overseas, the question as to whether and under what circumstances foreign authors might be protected in Britain was not so clear. In Clementi v. Walker (1824) the German-born French pianist Friedrich Kalkbrenner (1785-1849) had composed a popular air entitled Viva Henri Quatre the rights to which he sold in France in June 1814 while at the same time reserving to himself the right of publication in England; this he sold to the plaintiffs in July of the same year.[25] The initial agreement with the plaintiffs was, however, an oral one only and would not be set out in writing until 1822. In the interim the defendant, having purchased a copy of the music in Paris, published it in December 1818. Upon the basis that the oral agreement in 1814 did not amount to an assignment of the copyright in the work to the plaintiffs,[26] the question for the court was whether the publication by the defendant in 1818 amounted to an infringement of anyone's rights? Put differently, could an author whose work was first published abroad prevent someone from reproducing the work in Britain? Counsel for the defendant played a jingoistic masterstroke in stressing the role of the copyright statutes in encouraging "British industry and capital", a strategy which obviously struck a chord with Bayley J (1763-1841):

"[T]he Legislature must be supposed to have legislated with a view to British interests and the advancement of British learning. By confining the privilege to British printing, British capital, workmen and materials would be employed, and the work would be within the reach of the British public. By extending the privilege to foreign printing, the employment of British capital, workmen, and materials might be suspended, and the work might never find its way to the British public. Without very clear words, therefore, to shew [sic] an intention to extend the privilege to foreign publications, I should think [the Statute of Anne] must be confined to books printed in this kingdom ... To hold to the contrary would discourage British enterprise, and stop avenues to British knowledge."[27]

This line was followed in Delondre v. Shaw (1828) in which Shadwell VC (1779-1850) simply observed that "[t]he Court does not protect the copyright of a foreigner",[28] and Guichard v. Mori (1831) in which Lord Chancellor Brougham (1778-1868), drawing upon Bayley J's theme on the "avenues to British knowledge", observed:

"[I]t is sufficient to say that the legislature encourages the importation of foreign works; it wishes to keep open the avenues of knowledge; and an author beyond the sea who desires to secure any privilege here, either to himself or any one to take under him, should publish here immediately ... Could he come forward several years after publication abroad, and treat an intermediate publication in this country as a piracy, many foreign works would never be published amongst us at all."[29]

In both Clementi and Guichard the works in question had been first published abroad; in D'Almaine v. Boosey (1835) the situation was different.[30] The composer Daniel François Esprit Auber (1782-1871) wrote the music for an opera, Lestocq, first performed in Paris in May 1834, and sold the rights to publish the music in Britain to D'Almaine who registered and published the work in June of that year. Auber had also assigned the right to publish the work on the continent to a French publisher and, while there was some disagreement as to when he first published his edition of the work, it appears not to have been released in France until July, a few weeks after D'Almaine's edition appeared in London. Twiss, for the plaintiff, argued simply that "[c]opyright exists at common law, and the power to transfer such a right is recognized by the statute of Anne" - the assignment of the work to his client was then "valid at common law, if not under the act of Parliament".[31] Beames and Wood, for the defendant, relied upon Delondre in which case they suggested "there is an express decision on the subject. In that case one of the grounds of the Vice Chancellor's judgment was, that a foreigner can have no copyright which a Court of equity will protect". Abinger CB (1769-1844) intervened:

"What has that case to do with copyright? The substantial ground for the relief was, that the property of the plaintiff was injured by the sale of a spurious article by another party. Am I to understand that, if a foreigner residing here were to invent and publish a work, and enter it at Stationers' Hall, he would have no property in that work?"[32]

Counsel replied: "The present is not that case; but it is difficult to say that a foreigner so circumstanced would have any such property, for the object of the act was solely to encourage British skill and industry".[33] Lord Abinger disagreed with the defendant's reading of both Delondre and the legislation:

"I have been struck with the authorities [that is, Delondre] produced on behalf of the defendant, and if the Vice Chancellor had decided expressly that a foreigner, quà foreigner, had no protection in England in regard to copyright, I confess I should have doubted the correctness of that decision; ... But the case which has been cited upon the subject does not got to that length; it is in principle not quite intelligible, but there was a clear ground for an injunction independent of the question of copyright. Besides, that was a case where one of the parties resided abroad; and all the Vice Chancellor said was, that the publisher of a work at Paris could not protect himself in a Court of justice in England."[34]

The question, Lord Abinger continued, had in fact been settled nearly fifty years earlier in Bach v. Longman (1777) which, although an action concerning the question of whether music could be considered to be ‘writing' within the Statute of Anne, nevertheless involved a plaintiff who was German born;[35] the judge presiding was, of course, none other than Lord Mansfield (1705-1793).

6. The International Copyright Act 1838

Although the decision would be revisited in the courts,[36] in the mid-1830s D'Almaine proffered foreign authors copyright protection under the Statute of Anne as long as their work was first published within Britain. They did not even need to be resident within Britain when the work was published; it was sufficient that they assign their work to a British publisher for that purpose. By the time D'Almaine was decided, various continental publishers and booksellers (primarily French) had also become specialist dealers in English language texts, such that the domestic market was awash with overseas imprints of, not just classic texts, but contemporary British works also.[37] One of the most popular series of continental reprints was Baudry's numbered Collection of Ancient and Modern British Authors. Published jointly by Baudry and Galignani, both Parisian publishers, the series began in 1831 with Walter Scott's (1771-1832) novel Waverly, and by 1850 incorporated nearly 450 titles by authors such as Dickens (1812-1870), Thackeray (1811-1863), and Bulwer-Lytton (1803-1873), as well as Maria Edgeworth (1768-1849), Theodore Hook (1788-1841), and G.P.R. James.[38] While these firms might have begun by catering primarily for English tourists, they soon extended their reach. Some, like Galignani, offered to supply works directly to individual clients in London, while others, such as Baillière, even opened shops within the British metropolis.[39] Given that their editions were available for anything from one-half to one-sixth of the standard retail price in Britain,[40] it is, perhaps, not surprising that these cheap reprints began "to show up in bookshops, circulating libraries, and reading societies" with increasing regularity.[41]

In December 1837 Bulwer Lytton observed in the Commons that "[a]s soon as a book was published the press of France reprinted it at one-fifth the original price, and the country thus became deluged with foreign piracies", and continued that "the Government ought to take steps to prevent such occurrences".[42] Poulett Thomson (1799-1841), then President of the Board of Trade, in response informed the House that the government was already engaged in "considerable negotiations going forward on the subject", and that he would, in the new year, introduce a measure which would, he hoped, result in establishing with a number of countries "a reciprocity of interest with respect to copyrights".[43] Three months later, on 20 March, Poulett Thomson sought leave to bring in the International Copyright Bill which was designed "simply to give to foreigners for their works in this country that protection with regard to copyright which English authors in return might be enabled to obtain for their works in foreign countries".[44] Many of the European States, and America, he explained, had recently turned their attention to this very subject:

"In France and Germany commissioners had been appointed upon the law of copyright, and in the United States a committee of inquiry. The commissioners in France and Germany said, that they felt the inconvenience arising from the publication of their works in other countries, but that while they sought to protect their own authors, they should also afford protection to foreign authors. Therefore, in order to obtain protection for ourselves abroad, it was necessary to hold out the prospect of protection in this country to the authors of other countries."[45]

It was not possible, he continued, "to pass one general law, based upon the principle of our own law of copyright" to achieve such ends, as "the law of copyright varied so much in different countries".[46] Instead, the government proposed a Bill that would enable the Crown to negotiate and develop a series of bilateral copyright agreements, by way of Order in Council, with those countries willing to provide reciprocal protection. Four months later the International Copyright Act 1838 was passed to this end.[47]

In short, the Act provided that Victoria (1819-1901) could, by Order in Council, grant copyright protection, within Britain and her Dominions, to the authors of books first published abroad for a period specified within the Order but not exceeding the domestic copyright term.[48] Foreign works seeking protection were to be registered with the Company of Stationers,[49] and one copy of each work was to be deposited with the Company's Warehouse Keeper for subsequent delivery to the British Museum.[50] No Order was to have any effect unless a reciprocal protection was provided by the contracting state, and Orders were to be revocable. In addition, for the first time since the Statute of Anne, the legislation also incorporated an interpretation clause, providing a statutory definition of a ‘book' ("'Book' shall be construed to include ‘Volume,' ‘Pamphlet,' ‘Sheet of Letterpress,' ‘Sheet of Music,' ‘Map,' ‘Chart,' or ‘Plan;'") as well as the act of printing and reprinting (which "shall include Engraving and or any other method of multiplying Copies").[51]

7. The impact of the 1838 Act

When Poulett Thomson sought leave from the Commons to introduce the Bill a number of members of the House, while supporting the suggestion in principle, expressed considerable scepticism as to whether or not agreement between Britain and its European counterparts could be achieved on the subject of copyright protection. Mr. Milne, for example:

"[D]oubted the possibility of its operation ... because, by any such agreement as it proposed, we should be greatly the gainers ... Everybody knew that the circulation of English books in France was much more extensive than that of French books in England, and it was very unlikely, therefore, that any such agreement, an agreement which, would, undoubtedly be most unpopular with the book trade in Paris, would be entered into by the French government."[52]

Such doubts proved prescient indeed as all of the negotiations entered upon the basis of the 1838 Act subsequently failed.[53] Barnes recounts the subsequent history of governmental action under the legislation as follows:

"Following the passage of [the Act], there was some delay before the Board of Trade mobilized itself and sent a copy of the Act to the Foreign Office with the suggestion that overtures be made to France, Prussia, Austria, Saxony, and the United States ... In its turn, the Foreign Office procrastinated but by early March 1839 diplomatic representatives were contacted and urged to consider treaty negotiations. A complicated series of exchanges then took place with the German states, especially Prussia, but in the end the British Government was reluctant to accept the Prussian terms. France never made an official reply to the British initiative and the matter was allowed to drop. The American Minister ... promptly acknowledged the Foreign Office note of 6 March, saying that he would refer the matter to his government in Washington, but nothing was heard from the Americans for a year ... Eleven years later the Foreign Office noted: ‘It does not appear that any answer was ever received'."[54]

There is no doubt that at least the European states were reluctant to agree terms because reciprocal protection under the Act did not necessarily mean equal protection.[55] The legislation, for example, had been careful to limit the term of protection offered to foreign authors at no longer than that which was available to national authors under the domestic legislation. The Copyright Act 1814 currently provided for a twenty-eight year term of protection from the point of publication, after which, if the author was still alive, the copyright term would run for the rest of his natural life.[56] By contrast, at this time in France copyright lasted for the life of the author with a twenty year post-mortem term, whereas the Prussian copyright term lasted for the author's life plus an additional thirty years.[57] Moreover, the 1838 Act set out that nothing therein was to prevent the printing, publication, or sale of any translation of a book by an author that was otherwise entitled to protection under the Act.[58] That is, while works in a foreign language would fall with the remit of the Act, English language translations of such works would not.[59] In short, negotiations stalled, in part at least, because what Britain was offering was considerably less than it would receive in return.[60]

Despite the lack of success in negotiating any bilateral copyright agreements under the legislation, the International Copyright Act was nevertheless of considerable significance in two basic respects. First and foremost, it signalled Britain's recognition of and response to the importance of international copyright in better protecting its domestic trade as well as exploiting the overseas market beyond its own colonial borders. In this regard, the 1838 Act, and its deficiencies, ultimately provided a platform for subsequent, more successful, legislation in the guise of both the International Copyright Act 1844[61] and the International Copyright Act 1852.[62] Second, the Act introduced some considerable doubt as to whether the decision in D'Almaine would still ensure protection for foreign authors first publishing their work in Britain, in that the legislation expressly provided that "the Author of any Book to be after the passing of this Act first published [outside of the British empire] shall have no Copyright ... otherwise than such (if any) as he may become entitled to under this Act".[63] The issue as to whether and under what circumstances foreign authors might receive protection (in the absence of any specific international agreement providing the same) was once again thrown into question, and it was a debate that would be revisited twice in the House of Lords with the decisions of Jeffreys v. Boosey (1854) [64] and Routledge v. Low (1868).[65]

8. References

Government papers and legislation

Several Restraints of Aliens, 1484, 1 Ric.III, c.9

An Act for Printers, and Binders of Books, 1534, 25 Hen VIII c.15

Licensing Act, 1662, 3 & 4 Car.II, c.33

Statute of Anne, 1710, 8 Anne, c.19

An Act for prohibiting the Importation of Books reprinted abroad and first composed or written and printed in Great Britain and for limiting the Prices of Books (the Importation Act), 1739, 12 Geo.II, c.36

Copyright Act, 1814, 54 Geo.III, c.156

An Act for granting to Samuel Buckley, Citizen and Stationer of London, the sole Liberty of Printing and Reprinting the Histories of Thuanus, with Additions and Improvements, during the Time therein limited, 1834, 7 Geo.II, c.24

International Copyright Act, 1838, 1 & 2 Vict. c.59

International Copyright Act, 1852, 15 & 16 Vict., c.12

International Copyright Act, 1844, 7 & 8 Vict., c.12

Cases

Bach v. Longman (1777) 2 Cowp 623

Power v. Walker (1814) 3 M&S 7.

Clementi v. Walker (1824) 2 B&C 861

Delondre v. Shaw (1828) 2 Sim 237

Guichard v. Mori (1831) 2 Coopers 216

Page v. Townsend (1832) 5 Sim 395

D'Almaine v. Boosey (1835) 1 Y&C 288

Jeffreys v. Boosey (1854) 4 HLC 815

Routledge v. Low (1868) LR 3 HL 100

Books and articles

Barber, G., "Galignani's and the Publication of English Books in France from 1800 to 1852", The Library, 5th Ser., 16 (1961): 267-86

Briggs, W., The Law of International Copyright, (London: Stevens & Haynes, 1906)

Buckley, S., "A Short State of the publick Encouragement given to printing and Bookselleing in France, Holland, Germany, and at London". Reprinted in English Publishing, the Struggle for Copyright, and the Freedom of the Press: Thirteen Tracts, 1666-1774. Edited by Parks, S. (New York & London: Garland, 1975)

Clark, A.J., The Movement for International Copyright in Nineteenth Century America (Connecticut: Greenwood Press, 1960)

Dugas, D-J., "The Book Trade in London in 1709 (Part One)", Papers of the Bibliographical Society of America, 95 (2001): 32-58

Gill, M.L., American Literature and the Culture of Reprinting, 1834-1853 (Philadelphia: University of Pennsylvania Press, 2003)

Locke, J., "Memorandum on the 1662 Act". Reprinted in The Correspondence of John Locke, in Eight Volumes. Edited by E.S. DeBeer, E.S. (Oxford: Clarendon Press, 1978)

Lowndes, J.J., An Historical Sketch of the Law of Copyright, 2nd ed. (London: Saunders and Benning, 1842)

[2] S. Rogers, "The Use of Royal Licences for Printing in England, 1695-1760: A Bibliography", The Library, (2000): 133-92.

[3] S. Buckley, "A Short State of the publick Encouragement given to printing and Bookselleing in France, Holland, Germany, and at London", reprinted in English Publishing, the Struggle for Copyright, and the Freedom of the Press: Thirteen Tracts, 1666-1774 ed. Parks, S. (New York & London: Garland, 1975).

[5] An Act for granting to Samuel Buckley, Citizen and Stationer of London, the sole Liberty of Printing and Reprinting the Histories of Thuanus, with Additions and Improvements, during the Time therein limited, 1834, 7 Geo.II, c.24.

[6]The Humble Petition of Several Proprietors of Copies of Books, 1735, British Library 357.c.2. (80).

[9] An Act for prohibiting the Importation of Books reprinted abroad and first composed or written and printed in Great Britain and for limiting the Prices of Books (the Importation Act), 1739, 12 Geo.II, c.36. About the implementation of the 1739 Act, Pollard writes as follows: "News of the passage of the Act had been triumphantly announced on 5 June, and on 11 September a memorial for the [Customs] Commissioners was drawn up, pointing out that strict observance of the Act was of consequence not only to the Stationers but also to His Majesty's Revenue. The Commissioners sent out a letter dated 25 October to all Customs officers, stating that the Stationers' Company had desired that orders be given relative to the Act. They therefore ‘direct you to give it in strict Charge to the proper Officers at your Port to open and examine all Bales of Books and stop all such Books as are Imported for sale contrary to ye said Act and give the Board immediate notice thereof'; the Stationers' Company was to bear the expense of prosecution, ‘and will give the Officers their Share of all penaltys and Forfeitures arising by the said Act and also indemnify the Officers for all such Seizures'"; M. Pollard, Dublin's Trade in Books 1550-1800 (Oxford: Clarendon Press, 1989), 75-76.

[10] The Act provided that "it shall not be lawful for any person or persons whatsoever, to import or bring into this Kingdom for sale, any book or books first composed or written, and printed and published in this Kingdom, and reprinted in any other place or country whatsoever" and continued that should anyone import "or knowing the same to be so reprinted or imported ... shall sell, publish, or expose to sale", such works, then they were liable to forfeit the offending books, as well as the sum of five pounds and double the value of such books; Importation Act, 1739, s.1.

[13] Section 12 set out as follows: "Provided always that this Act, or any Part thereof, or any other Act made or to be made in this said Parliament, shall not extend or be in prejudice, disturbance, damage, or impediment to any artificer, or merchant stranger, of what nation or country he be or shall be of, for bringing into this realm, or selling by retail or otherwise, any book written or printed".

[14] Ibid. In general see F.S. Siebert, Freedom of the Press in England 1476-1776 (Urbana: University of Illinois Press, 1965), 25.

[17] See for example the provisions in the Licensing Act, 1662, 3 & 4 Car.II, c.33., concerning the importation of books: ss.5, 6, 9, and 20.

[18] Indeed, the Act as originally drafted had only sought to allow for the importation of works "printed originally beyond the seas" (see A Bill for the Encouragement of Learning, and for Securing the Property of Copies of Books to the Rightful Owners thereof, 1709, Lincoln's Inn Library, MP102, Fol.98, clause 5). That this was subsequently changed during the Bill's passage through parliament to allow for the importation of any foreign language work, whether first printed in Britain or not, represented a significant inroad into an otherwise lucrative market given that foreign language texts made up around ten percent of the output of the London book trade in 1709 (see D-J Dugas, "The Book Trade in London in 1709 (Part One)", Papers of the Bibliographical Society of America, 95 (2001): 32-58). Moreover, the nature of the change to the original draft also underscored the role which the section played in promoting the stated aim of the legislation itself: the encouragement of learning.

[19] The impulse to liberate these foreign language texts from the controls of the indigenous book market, in the interests of education, can perhaps be traced to John Locke's earlier commentary upon the state of the trade and its relationship with the dissemination of and access to scholarly materials. See J. Locke, "Memorandum on the 1662 Act", reprinted in The Correspondence of John Locke, in Eight Volumes ed. E.S. DeBeer (Oxford: Clarendon Press, 1978), 5: 785-95.

[20] About the 1739 Act Drone writes: "[The Act] was designed not for the prevention or redress of piracy, but simply to increase the revenues and protect the industrial interests of the kingdom. This is manifest from the preamble of the statute, 12 Geo.II. c.36, which recites that ‘the duties payable upon paper imported into this kingdom, to be made use of in printing, greatly exceed the duties payable upon the importation of printed books, whereby foreigners and others are encouraged to bring in great numbers of books originally printed and published in this kingdom and reprinted abroad, to the diminution of his Majesty's revenue, and the discouragement of the trade and manufacture of this kingdom.' ‘The prevention thereof for the future,' was the avowed object of the act"; Drone, 472, n.1.

[21] G.P.R. James, "Of some observations on the book trade, as connected with literature in England", Journal of the Statistical Society of London, 6 (1843): 50-60, cited in J.J. Barnes, Authors, Publishers and Politicians: The Quest for an Anglo-American Copyright Agreement 1815-1854 (London: Routledge & Kegan Paul, 1974), 96.

[22] In March 1838 Poulett Thomson, introducing the International Copyright Bill to the Commons, commented that: "It was a matter of notoriety that works were pirated abroad as soon as they made their appearance at home: that no sooner were productions sent to the press in this country, than the utmost efforts were exerted to purloin proof-sheets for the purpose of sending them to America, France, Belgium, or Germany. Pirated editions were published at once in those countries and circulated over those countries forthwith, by which means the authors were deprived of the fair fruits of their labour - of those legitimate pecuniary rewards for which they were reasonably entitled to look"; Hansard, 3rd Ser., 41 (1838): 1098.

[23] In a meeting of authors and publishers in 1842 it was considered that "the means employed for Smuggling copies of Spurious Editions into Great Britain and her dependencies are so artful, and the opportunities so great, that the most effectual check which can be applied to this evil appears ... to be the conclusion of Treaties with Foreign Powers for the mutual recognition of Literary Property"; Publishers' Circular, 1 July 1842, quoted in Barnes, 118.

[24] In France, in 1836, the problem of Dutch and Belgian reprints of French works was so severe, that a Commission was appointed by the government to consider the issue. The Commission's Report, presented the following year, strongly advocated the use of international copyright treaties as a means of addressing the problem. See W. Briggs, The Law of International Copyright, (London: Stevens & Haynes, 1906), 49-53. In 1837 Prussia enacted a law extending copyright protection to foreign works so long as the foreign state provided reciprocal protection; No.1840. Gesetz zum Schutze des Eigentums an Werken der Wissenschaft und Kunst gegen Nachdruck und Nachbildung, s.38. In general see: d_1837a. In the US, a petition, organized by the publishers Saunders & Otley, and signed by 56 English writers, including Bulwer-Lytton, Thomas Carlyle, Benjamin Disraeli, and Harriet Martineau, was presented by Senator Henry Clay to Congress requesting that they put an end to the unauthorized publication of British works in America by extending copyright protection to foreign authors; see A.J. Clark, The Movement for International Copyright in Nineteenth Century America (Connecticut: Greenwood Press, 1960), 41-55. See also: Barnes, 49-74; Meredith L. Gill, American Literature and the Culture of Reprinting, 1834-1853 (Philadelphia: University of Pennsylvania Press, 2003), 76-108.

[26] The statute required all assignments to be "in writing"; see Power v. Walker (1814) 3 M&S 7.

[27]Clementi (1824) 867-68, 870. See also Page v. Townsend (1832) 5 Sim 395, concerning prints published in Paris two days before they were published in London, in which Shadwell VC commented: "It is plain that the object of the Legislature was to protect those works which were designed, engraved, etched or worked in Great Britain, and not those which were designed, engraved, etched or worked abroad, and only published in Great Britain"; ibid., 404.

[28]Delondre v. Shaw (1828) 2 Sim 237. Delondre concerned the copyright in a label on a bottle of medicine, which had been invented and was sold by the plaintiff in Great Britain, but was manufactured for the plaintiff by a French chemist, Pelletier, who had also designed the label.

[29]Guichard v. Mori (1831) 2 Coopers 216. That Brougham should have stressed the role of the legislature in keeping open "the avenues of knowledge" should not surprise given the extent to which he was involved in educational reform throughout his life. Described by one of his contemporaries as "the foremost advocate of popular education" Brougham was involved in the operation of Mechanic's Institutes (which sought to encourage working men to educate themselves upon matters of philosophy and the natural sciences), and played a central role in the establishing of the Society for the Diffusion of Useful Knowledge in 1826, as well as the founding of the University of London. Later in 1856, in his 79th year, he was instrumental in establishing the National Association for the Promotion of Social Science. In general see R. Stewart, Henry Brougham, His Public Career 1778-1868 (London: The Bodley Head, 1986), 183-204.

[41] Barnes, 95. Barnes continues that: "Paris reprints rarely appeared in London shops until 1834-5", after which, "all of a sudden there seemed to be an epidemic extending as far as the city of Bath"; ibid., 97. Seville recounts the story of Wordsworth anonymously visiting a Piccadilly bookshop and asking for Galignani's edition of his poems: "When a single copy was readily proffered, Wordsworth asked for five, then ten, then a hundred - then 500. The bookseller's response to the largest quantities was still positive: ‘give me only time'"; Seville, 43.

[46] Ibid., 1100. The possibility of negotiating a single multi-lateral treaty had at one stage been entertained but this was subsequently rejected on the grounds of impracticality. As Sherman and Bently comment: "[T]he reason why the option of a multilateral treaty was rejected as the means of establishing international copyright protection can be traced to the belief that just as literature was said to reflect national character, copyright laws reflected the national character of the country in which they operated. As such it was considered too difficult to develop a treaty which could singularly transcend and unite all the variation that existed between the proposed member states. As a consequence of these envisaged difficulties, the plans for a multilateral treaty were rejected in favour of more flexible bilateral agreements which the Crown would be able to pass in specific circumstances"; B. Sherman and L. Bently, The Making of Modern Intellectual Property Law (Cambridge: Cambridge University Press, 1999), 113-14.

[50] Ibid., ss.1, 5. Six years earlier Mr Spring Rice had addressed the Commons in the following terms: "[T]hat it must be very obvious to every one how beneficial it would be to have a free interchange of literary information between this country and France. In this idea the French government fully concurred, and there was already an interchange of public and parliamentary documents. It was, however, desirable to go a step further, and exchange literary works, so that a few copies of all the French works might be deposited in some of the public places of this country, and a few of all the English works deposited in some public place in France"; Hansard, 3rd Ser., 14 (1832): 897-98. While his proposals at that time to encourage such an exchange of literary works never came to fruition, the deposit requirement in the 1838 Act at least held out the promise of facilitating that very goal.

About the deposit requirement Lowndes writes as follows: "There was a discussion in the House of Lords on the third reading, as to a proposed amendment requiring copies of works delivered to the Universities, besides the copy required by the Bill to be furnished to the British Museum. But on its being observed that if we exacted this from foreigners, foreign governments might, with equal justice, demand copies of our works, and thus, by an extended system of international Copyright throughout the continent, perhaps a hundred copies might be required, which would be so heavy a tax as to defeat the intentions of the act, the proposed amendment was not persisted in"; J.J. Lowndes, An Historical Sketch of the Law of Copyright, 2nd ed. (London: Saunders and Benning, 1842), 93.

[53] In February 1841 Lord Palmerston, then Secretary for Foreign Affairs, reported to the Commons that while "propositions had been made to the Governments of the United States, the German Confederation, Saxony, and Prussia ... none of the overtures had led to any satisfactory result"; Hansard, 3rd Ser., 56 (1841): 778.

[55] Sherman and Bently note, for example, that in 1840 "the Prussian government decided to discontinue its negotiations with Britain because ‘it considered that the reciprocity which was contemplated by [the Act] to be only an apparent reciprocity', because the protection offered under the Prussian Law for the Protection of Property in Respect of Works of Science and of Art against Counterfeiting and Imitation was greater than that available in Britain"; Sherman and Bently, 116. See also Barnes, 118-19.

[57] Note that Curtis, writing in 1847, recounts the various copyright terms as follows: "In France, the property in a work is secured to the author for his life, to his widow for her life, in case the marriage contract endows her with it, and, after their death, to the children for twenty years. In Holland and Belgium, the duration of a copyright is to the author for his life, and to his heirs and representatives for twenty years after his death. In Prussia, copyright lasts for the author's life, and his heirs have a term of thirty years from his decease. In Russia, it is for the author's life, and for twenty-five years to the heirs. In Austria, the rights of authors do not descend to their heirs. In Denmark, Norway, Sweden, and Spain, copyright is perpetual"; Curtis, 25, n.1.

[59] On this point, a Mr. Golbourn had commented in parliament as follows: "H]e apprehended that the law would not include [translations of works]. The translator having expended his time and his labour, and his talents in the work of translation, it would be unjust that he should not be paid; but, at the same time, to permit the publication of translations would be unjust to the original inventor of the work, and it was apparent that his interests would be materially affected by means of the translation"; Hansard, 3rd Ser., 41 (1838): 1105.

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